The Patriot Act is the gateway drug for an Administration addicted to the expansion of unaccountable power.

April 14, 2005

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Memo to Congress: Whenever Attorney General Alberto Gonzales starts talking like a, you know, sort of likably dodgy teenager confronted with dings on the family car, it’s time to pay close attention. In the first round of Congressional hearings into the Patriot Act, the normally precise Gonzales took on the oily grammar of evasion whenever he was pressed on a core civil liberties issue: “Let me, kind of, reassure the committee and the American people” (on snooping into library and medical records). “That’s a difficult question that requires, sort of, a case-by-case analysis” (on rendition of prisoners to regimes with a record of torture). Gonzales is playing at friendly conciliation. But his studied defense of the Patriot Act and broader incursions on constitutional checks and balances are if anything more disturbing than the diatribes that emanated from his predecessor.

The sunset review of the Patriot Act marks a singular opportunity for Congress to catalogue abuses and rethink the Administration’s rights-shredding approach to security. The Administration’s obsession with secrecy makes a proper evaluation difficult, but the limited evidence so far available is alarming. Through January 2005 the Justice Department served at least 155 “sneak-and-peek” search warrants, undermining the fundamental American tradition requiring reasonable notice of searches and seizures. Many of those secret warrants involved not terrorism but conventional prosecution for violent crime and drugs–a broadening of police power with no national-security justification. Personal records have been seized on thirty-five occasions. And then there is what is not knowable. The expanded use of secret courts to hear secret evidence, particularly against foreign nationals but against citizens as well: Secret evidence was apparently a factor in the wrongful arrest of attorney Brandon Mayfield for what proved to be nonexistent connections to the Madrid bombing. The growing unease across party lines was unmistakable. Democratic Senator Patrick Leahy blasted “the Administration’s destruction of legitimate oversight” while former GOP Representative Bob Barr argued that national security “has taken precedence” over protecting civil liberties.

There is great risk that Congress will settle for technical fixes that limit the most highly publicized Patriot Act powers, or procrastinate on serious reform with another two years of sunset review. The Patriot Act, for all its noxiousness, is the symptom, not the disease–or rather, the gateway drug for an Administration addicted to the expansion of unaccountable executive-branch power. When Congress passed the act in 2001, not even its critics foresaw the full breadth of the Administration’s sustained assault on civil liberties and the rule of law, against which federal courts are now in open revolt. For all his charm, the new Attorney General showed his true colors when senators Ted Kennedy and Patrick Leahy pressed the issue of rendition and the torture convention. Far from his highly hyped spirit of compromise, Gonzales replied three separate times with determinedly evasive logic: Prisoners should be kept away from abusive regimes only “when we believe it’s more likely than not that they will be tortured.”

It is precisely because the Patriot Act is so deeply implicated in wider human rights abuses that mere technical fixes are not enough. Instead, at a minimum, Congress should pass the Security and Freedom Enhancement Act, a bipartisan bill that would restore key checks and balances and constitutional provisions. With its broad liberal/conservative base and grassroots support–recently the House of Delegates in Montana, a strong Bush state, urged Congressional passage–SAFE makes political sense. The point is to raise the floor on civil liberties: Not kind of, not sort of, but definitively restore the Bill of Rights and the rule of law.